[Cite as Clark v. Ohio Dept. of Transp., 2011-Ohio-6895.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

ALAN CLARK 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant

Case No. 2011-05467-AD 

Acting Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Alan Clark, filed this action against defendant, Department of 

Transportation (ODOT), contending the right front tire on his vehicle was damaged as a 

proximate result of negligence on the part of ODOT in maintaining a hazardous 

condition in a construction area on State Route 2 in Lake County. Plaintiff related his 

car was damaged when the vehicle struck a large pothole in the traveled portion of the 

roadway. Plaintiff recalled the specific damage incident occurred on December 14, 

2009. Plaintiff submitted a copy of a police report which establishes two other vehicles 

also hit the pothole near the same time, at approximately 7:51 a.m. In his complaint, 

plaintiff requested damages in the amount of $374.72, the total cost of a replacement 

tire and related automotive repairs. The filing fee was paid. 

{¶2} Defendant acknowledged that the area where plaintiff’s stated property 

damage event occurred was located within the limits of a working construction project 

under the control of ODOT contractor, Anthony Allega Cement Contractor/Great Lakes 

Construction (Allega). Defendant explained this particular construction project “dealt 

with grading, draining, paving with asphalt concrete on an asphalt concrete base in part, 

paving with reinforced concrete paving in part, noise barrier, reinforced concrete 
retaining walls, MSE walls and rehabilitating existing structures between mileposts 3.32 

to 7.75 (on State Route 2) in Lake County.” Defendant asserted Allega, by contractual 

agreement, was responsible for roadway damage, occurrences, or mishaps within the 

construction zone. Therefore, ODOT argued Allega is the proper party defendant in this 

action. Defendant implied all duties, such as the duty to inspect, the duty to warn, the 

duty to maintain, and the duty to repair defects were delegated when an independent 

contractor takes control over a particular section of roadway. All work by the contractor 

was to be performed in accordance with ODOT mandated specifications and 

requirements and subject to ODOT approval. Furthermore, defendant maintained an 

onsite personnel presence in the construction project area. 

{¶3} For plaintiff to prevail on a claim of negligence, he must prove, by a 

preponderance of the evidence, that defendant owed him a duty, that it breached that 

duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy 

Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff 

has the burden of proving, by a preponderance of the evidence, that he suffered a loss 

and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio 

State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the 

burden of proof rests to produce evidence which furnishes a reasonable basis for 

sustaining his claim. If the evidence so produced furnishes only a basis for a choice 

among different possibilities as to any issue in the case, he fails to sustain such 

burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio 

St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed. 

{¶4} Defendant has the duty to maintain its highways in a reasonably safe 

condition for the motoring public. Knickel v. Ohio Department of Transportation (1976), 

49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an 

insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 

112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67 

Ohio App. 3d 723, 588 N.E. 2d 864. The duty of ODOT to maintain the roadway in a 

safe drivable condition is not delegable to an independent contractor involved in 
roadway construction. ODOT may bear liability for the negligent acts of an independent 

contractor charged with roadway construction. Cowell v. Ohio Department of 

Transportation, Ct. of Cl. No. 2003-09343-AD, jud, 2004-Ohio-151. Despite defendant’s 

contention that ODOT did not owe any duty in regard to the construction project, 

defendant was charged with duties to inspect the construction site and correct any 

known deficiencies in connection with particular construction work. See Roadway 

Express, Inc. v. Ohio Dept. of Transp. (June 28, 2001), Franklin App. 00AP-1119. 

{¶5} Alternatively, defendant argued that neither ODOT nor Allega had any 

knowledge “of potholes on SR 2” prior to plaintiff’s incident. Defendant contended that 

plaintiff failed to produce evidence establishing his property damage was attributable to 

conduct on the part of ODOT or Allega. 

{¶6} Defendant submitted an email from Allega representative, Carmen C. 

Carbone, regarding his knowledge of roadway conditions on State Route 2 at the time 

and location of plaintiff’s incident. Carbone reported that the pothole on State Route 2 

that plaintiff’s vehicle struck must have occurred “sometime over night or early morning 

hours. As soon as we were notified of the pothole, Allega immediately began repairing 

the roadway. Allega had no prior knowledge or indication of any hazard on the 

roadway.” 

{¶7} In order to find liability for a damage claim occurring in a construction 

area, the court must look at the totality of the circumstances to determine whether 

ODOT acted in a manner to render the highway free from an unreasonable risk of harm 

for the traveling public. Feichtner v. Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 

346, 683 N.E. 2d 112. In fact, the duty to render the highway free from an 

unreasonable risk of harm is the precise duty owed by ODOT to the traveling public 

under both normal traffic and during highway construction projects. See e.g. White v. 

Ohio Dept. of Transp. (1990), 56 Ohio St. 3d 39, 42, 564 N.E. 2d 462. 

{¶8} To prove a breach of the duty to maintain the highways, plaintiff must 

prove, by a preponderance of the evidence, that defendant had actual or constructive 

notice of the precise condition or defect alleged to have caused the accident. McClellan 

v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388. Defendant is only liable for 
roadway conditions of which it has notice but fails to reasonably correct. Bussard v. 

Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. 

{¶9} Generally, to recover in a suit involving damage proximately caused by 

roadway conditions including potholes, plaintiff must prove that either: 1) defendant had 

actual or constructive notice of the pothole and failed to respond in a reasonable time or 

responded in a negligent manner, or 2) that defendant, in a general sense, maintains its 

highways negligently. Denis v. Department of Transportation (1976), 75-0287-AD. 

There is no evidence ODOT or Allega had actual notice of the potholes or other defects 

prior to plaintiff’s incident at 7:51 a.m. on December 14, 2009. Therefore, in order to 

recover plaintiff must produce evidence to prove constructive notice of the defect or 

negligent maintenance. 

{¶10} “[C]onstructive notice is that which the law regards as sufficient to give 

notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of 

Fahle (1950), 90 Ohio App. 195, 197-198, 47 O.O. 231, 105 N.E. 2d 429. “A finding of 

constructive notice is a determination the court must make on the facts of each case not 

simply by applying a pre-set-time standard for the discovery of certain road hazards.” 

Bussard at 4.

{¶11} Generally, the trier of fact is precluded from making an inference of 

defendant’s constructive notice, unless evidence is presented in respect to the time the 

defective condition developed. Spires v. Ohio Highway Department (1988), 61 Ohio 

Misc. 2d 262, 577 N.E. 2d 458. To find constructive notice of a defect, evidence must 

establish that sufficient time has elapsed after the dangerous condition appears, so that 

under the circumstances defendant should have acquired knowledge of its existence. 

Guiher v. Dept. of Transportation (1978), 78-0126-AD. Ordinarily size of a defect 

(pothole) is insufficient to show notice or duration of existence. O’Neil v. Department of 

Transportation (1988), 61 Ohio Misc. 2d 287, 587 N.E. 2d 891. “Obviously, the requisite 

length of time sufficient to constitute constructive notice varies with each specific 

situation.” Danko v. Ohio Dept. of Transp. (Feb. 4, 1993), Franklin App. 92AP-1183. 

There is no evidence ODOT or Allega had constructive notice of any defects on State 

Route 2. 
{¶12} Defendant may bear liability if it can be established if some act or 

omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury. 

This court, as the trier of fact, determines questions of proximate causation. Shinaver v. 

Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. Evidence 

available tends to point out the roadway was maintained property under ODOT 

specifications. Plaintiff failed to prove his damage was proximately caused by any 

negligent act or omission on the part of ODOT or its agents. See Wachs v. Dept. of 

Transp., Dist. 12, Ct. of Cl. No. 2005-09481-AD, 2006-Ohio-7162; Vanderson v. Ohio 

Dept. of Transp., Ct. of Cl. No. 2005-09961-AD, 2006-Ohio-7163; Shiffler v. Ohio Dept. 

of Transp., Ct. of Cl. No. 2007-07183-AD, 2008-Ohio-1600. 
Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

ALAN CLARK 

 Plaintiff 

 v. 

OHIO DEPT. OF TRANSPORTATION 

 Defendant

Case No. 2011-05467-AD 

Acting Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE DETERMINATION

 Having considered all the evidence in the claim file and, for the reasons set forth 

in the memorandum decision filed concurrently herewith, judgment is rendered in favor 

of defendant. Court costs are assessed against plaintiff. 

 ________________________________ 

 DANIEL R. BORCHERT 

 Acting Clerk 

Entry cc: 

Alan Clark Jerry Wray, Director 

5508 Wilson Drive Department of Transportation 

Mentor, Ohio 44060 1980 West Broad Street 

 Columbus, Ohio 43223 

8/2 

Filed 8/9/11 

Sent to S.C. reporter 1/3/12